Ku. Manisha Kishan Vs Kamal Jangde

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2025:CGHC:30757

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 909 of 2020

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1 - The Divisional Manager Oriental Insurance Company, M.B. Trade, Balak Chowk, Dhamtari, District- Dhamtari, (C.G.), District : Dhamtari, Chhattisgarh

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--- Appellant

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Versus

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1 - Ku. Manisha Krisan D/o Parma Krisan Aged About 17 Years (Now Aged About 21 Years), R/o Dhaneli Kanhar, Tahsil And District- Kanker, (C.G.), District : Kanker, Chhattisgarh

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2 - Kamal Jangde S/o Lakhan Jangde Aged About 25 Years (Now Aged About 29 Years), R/o Barbaspur, Post-Barbaspur, Police Station-Dongargaon, Tahsil And District- Rajnandgaon, (C.G.) (Driver), District : Rajnandgaon, Chhattisgarh

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3 - Smt. Deepmal Hirwani W/o Ramesh Hirwani R/o Sadar South Ward Rambag, Near Vegetable Market, Tahsil And District- Dhamtari, (C.G.) (Owner), District : Dhamtari, Chhattisgarh

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--- Respondents

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MAC No. 808 of 2020

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1 - Ku. Manisha Kishan D/o Shri Parma Kishan Aged About 17 Years Minor Through Natural Guardian Father Parma Kishan, Aged About 17 Years, R/o. Village Dhaneli Knahar, Tahsil And District- Kanker, Chhattisgarh, At Present Diopopara Dhamtari, Thana Tahsil And District- Dhamtari, Chhattisgarh., District : Dhamtari, Chhattisgarh

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---Appellant

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SHUBHAM DEY Digitally signed by SHUBHAM DEY

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Versus

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2

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1 - Kamal Jangde S/o Shri Lakhan Lal Jangde Aged About 25 Years R/o.- Village And Post- Barbaspur, Thana- Dongargarh, Tahsil And District- Rajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh

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2 - Smt. Deepmala Hirwani W/o Shri Ramesh Hirwani, R/o Sadar South Ward, Near Rambag Vegetable Market Dhamatari, Tahsil And District- Dhamtari, Chhattisgarh., District : Dhamtari, Chhattisgarh

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3 - The Divisional Manager Oriental Insurance Company M.B. Trade Balak Chowk Dhamtari, District- Dhamtari, Chhattisgarh., District : Dhamtari, Chhattisgarh

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--- Respondents

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	MAC No. 909/2020
For Appellant	: Mr. H.S. Patel, Advocate
For Respondents No. 1	: Mr. Sumit Shrivastava, Advocate
For Respondents No. 2 & 3	: Ms. Aditi Singhvi, Advocate MAC No. 808/2020
For Appellant	: Mr. Sumit Shrivastava, Advocate
For Respondents No. 1 & 2	: Ms. Aditi Singhvi, Advocate
For Respondent No. 3	: Mr. H.S. Patel, Advocate

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S.B.: Hon'ble Shri Parth Prateem Sahu, Judge

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Order On Board

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04/07/2025

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As both the appeals are arising out of the common award, they are being heard together and disposed of by this common judgment.

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Appellant/Insurance Company in MAC No. 909/2020 has challenged the liability to pay the amount of compensation of Rs. 2,98,166/fastened upon it by the learned Additional Motor Accident Claims Tribunal (F.T.C.), Dhamtari (for short ‘the Claims Tribunal’) vide award dated 12.02.2020 in Claim Case No. 184/2018.

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Appellants-Claimants in MAC No. 808/2020 have sought enhancement of compensation awarded by the learned Claims Tribunal.

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Facts of the case in brief are that, on 11.05.2016, when Applicant i.e. Ku. Manisha on her bicycle was returning to Dipopara, Dhamtari after attending her tuition classes and reached near Amaltaspuram, at that time, the offending vehicle i.e. JCB bearing registration no. CG 05 G

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8170 driven by the Respondent No. 1 in a rash and negligent manner, dashed her bicycle and caused accident. In the said accident, she suffered serious injuries and was taken to hospital for treatment.

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The appellant/claimant filed a claim application before the learned Claims Tribunal pleading therein that due to the said accident caused by the offending vehicle, she suffered grievous injuries on her person resulting in 50% to 70% permanent disability. She was only 17 years of age on the date of incident and was earning Rs. 3,000/- per month by doing the stitching and other household jobs. Due to disability suffered by her, she is facing difficulties in doing her day to day activities and claimed compensation amounting to Rs. 29,00,000/- from the nonapplicants.

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The Non-Applicants No. 1 & 2 submitted their reply opposing the pleadings made in the claim application and pleaded that on the date of accident, the Non-Applicant No. 1/Driver was possessing valid and effective driving license, there was valid permit and fitness of the offending vehicle. The offending vehicle was insured with the NonApplicant No. 3, therefore, if any compensation is awarded, then same is payable by the Non-Applicant No. 3.

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The Non-Applicant No. 3/Insurance Company also filed separate reply and took a stand that the claimant being a minor (17 years) was not having a valid and effective driving license on the date of accident and was driving a motor vehicle (Scooty) without accompanying a person holding license under Section 10 of the Act, 1988. The father of applicant/claimant concealing the true facts, lodged false and fabricated report in the concerned police station. Further, offending vehicle was not involved in the said accident and some other vehicle

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had dashed the vehicle of the applicant. The accident was due to the rash and negligent driving of the claimant. Further, the Non-Applicant pleaded that on the date of accident, Non-Applicant No. 1 was not holding a valid and effective driving license and thus, vehicle i.e. JCB was being plied in breach of conditions of insurance policy.

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Mr. H.S. Patel, Learned counsel for the appellant/insurance company in MAC No. 909/2020 submits that the learned Claims Tribunal erred in deciding the objection of the insurance company that on the date of accident, driver of the offending vehicle (J.C.B.) was not possessed with valid and effective driving license, in negative. He contended that the learned Claims Tribunal has considered the definition of the Light Motor Vehicle, the unladen weight of the vehicle less than 7500 KG and therefore, the vehicle in the said accident will fall under the category of Light Motor Vehicle and the non-applicant was having license to drive Light Motor Vehicle, rejected the objection and further held that the Non-Applicant No. 3/Insurance Company failed to prove that on the date of accident, the vehicle was being driven in breach of conditions of insurance policy.

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The learned Claims Tribunal though considered the documents exhibited i.e. particulars of the vehicle as Ex. D/8 and the insurance policy as Ex. D/6, but not appreciated the documentary evidence in its true perspective. The document Ex. D/9 (c), which is the certificate of registration, does not mention the vehicle to be light motor vehicle or transport vehicle. He further submits that the vehicle is also not insured in the aforementioned category. Referring to Rule 2 (cab) of the Central Motor Vehicles Rules, 1989, he submits that the J.C.B. will fall under “construction equipment vehicle” for which, separate

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endorsement is required in the license of the driver authorizing him to drive particular class of vehicle i.e. J.C.B. He also referred to the copy of the license of the Non-Applicant No. 1/Driver Ex. D/3 which mentions light motor vehicle and motorcycle with gear. There is no other endorsement.

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Ms. Aditi Singhvi, learned counsel for the Respondents No. 2 & 3 i.e. owner and driver of the offending vehicle while opposing the submissions of the counsel for the appellant would submit that from perusal of the registration certificate of the offending vehicle, it is apparent that the unladen weight/gross vehicle weight of the vehicle is less than 7,500 KG i.e. 7460 KG. In the definition of the Light Motor Vehicle as envisaged under Section 2 (21) of the Motor Vehicles Act, 1988 (hereinafter for brevity referred to as the Act, 1988) the vehicles unladen weight of which is below 7,500 KG will fall within the category of Light Motor Vehicle and as such, the driver possessing the license to drive Light Motor Vehicle is authorized to drive J.C.B. also which is having its unladen weight of 7460 KG i.e. below 7500 KG. In support of her contention, she places reliance in the decision of the Hon’ble Supreme Court in the case of Bajaj Allianz Insurance Company Vs. Rambhadevi & Ors. reported in (2023) 5 SCC 95 . She submits that in the aforementioned decision, Hon’ble Supreme Court held that the person possessing the license of Light Motor Vehicle can also drive the transport vehicle of the same category and supported the award passed by the learned Claims Tribunal.

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11.Mr. Sumit Shrivastava, learned counsel for the Respondent No. 1 would also support the contention of the counsel for the Respondents

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No. 2 & 3. He however, submits that he has also filed separate appeal seeking enhancement of the amount of compensation.

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I have heard learned counsel for the parties and perused record of the claim case.

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To appreciate the submission of the counsel for the respective parties, I find it appropriate to have a glance of Section 2 (21) of the Act, 1988 which is extracted below for ready reference:-

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“2 (21) light motor vehicle means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or roadroller the unladen weight of any of which, does not exceed [7500] kilo grams;

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[(21-A) manufacturer means a person who is engaged in the manufacture of motor vehicles;].

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In the aforementioned definitions, the make and type of the different vehicles have been mentioned including Tractor and Road Roller, however, in the definition, J.C.B. is not included though, its unladen weight as per the registration certificate is less than 7,500 Kgs. In the definition as provided under Rule 2 (cab) of “Construction Equipment Vehicle”, the vehicles performing the earth moving, excavation, loading, transportation, drilling, spreading etc. have been included. The definition of the construction equipment vehicle provided under Rule 2 (cab) of Central Motor Vehicle Rules is extracted below for ready reference:-

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Rule 2 (cab):-

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“Construction equipment vehicle means rubber tyred (including pneumatic tyred), rubber padded or steel drum wheel mounted, selfpropelled, excavator, loader, backhoe, compactor

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roller, dumper, motor grader, mobile crane, dozer, fork lift truck, self-loading concrete mixer or any other construction equipment vehicle or combination thereof designed for off-highway operations in mining, industrial undertaking, irrigation and general construction but modified and manufactured with "on or off" or "on and off" highway capabilities;

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Explanation: A construction equipment vehicle shall be a non-transport vehicle the driving on the road of which is incidental to the main offhighway function and for a short duration at a speed not exceeding 50 kms per hour, but such vehicle does not include other purely offhighway construction equipment vehicle designed and adopted for use in any enclosed premises, factory or mine other than road network, not equipped to travel on public roads on their own power;]”

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The explanation appended to the aforementioned definition, further specifies that construction equipment shall be a non-transport vehicle, driving on the road of which is incidental to the main off-highway function and for a short duration, at a speed not exceeding 50 Km/hr, but such vehicle does not include purely off-highway construction equipment vehicle, designed and adopted for use in any enclosed premises, factory or mine other than the road network.

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From reading of the aforementioned definition of the construction equipment vehicle and the explanation appended, it is apparent that the J.C.B. is a self-propelled machine with rubber type tyre and it is oftenly driven on road for short period and below the speed limit as mentioned in the explanation of the construction equipment vehicle.

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Section 10 of the Act, 1988 of provides for the form and contents for license to drive. Section 10 (2) mentions the classes of the vehicle which reads as under:-

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“10 (2) A learners licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely:

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(a)motor cycle without gear;

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(b)motor cycle with gear;

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(c)[adapted vehicle];

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(d)light motor vehicle;

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[(e) transport vehicle;] (i)road-roller; (j)motor vehicle of a specified description.”

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A conjoint reading of provision under Section 10 (2) of the Act, 1988 and the definition under Rule 2 (cab) of Construction Equipment Vehicle would make it clear that the J.C.B. does not fall within the definition of Light Motor Vehicle and therefore, license to drive J.C.B. would be under Section 2 (j) i.e. the motor vehicle of a specified description. Description of the earth moving, excavation, loading equipment vehicle is included in the construction equipment vehicle, however, in the license of the driver of the offending vehicle, no such endorsement is made authorizing him to drive the motor vehicle of a specified description.

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Perusal of the registration certificate of the vehicle Ex. D/9 (c) would show that it does not mention Light Motor Vehicle, Medium Passenger/Goods Vehicle etc., but it mentions the body type – EXCAV

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(Excavation). From the certificate of registration, it can be culled out that the vehicle is made for excavation only and not a transport vehicle which includes passenger and goods carrying vehicle.

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The learned Claims Tribunal fell into error in not taking note of the provision under Rule 2 (cab) of the Rules, 1989 and arrived at a wrong conclusion that as unladen weight of J.C.B. (offending vehicle) is less than 7,500 Kg therefore, the persons holding the license of Light Motor Vehicle are authorized to drive the J.C.B. Machine also.

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The decision relied upon by the learned Counsel for the Respondents No. 2 & 3 in the case of Rambhadevi (Supra), Hon’ble Supreme Court has considered the issue ‘whether under the existing legal framework of the Motor Vehicles Act, 1988 and the Central Motor Vehicles Rules, 1989 a person holding a license for Light Motor Vehicle class, can drive a transport vehicle without a specific endorsement, provided, the gross vehicle weight of the vehicle does not exceed 7,500 kg.” The issue as framed by the Hon’ble Supreme Court for consideration is different than the issue which is involved in the facts of the case and therefore, in the opinion of this Court, the decision of Rambhadevi (Supra) relied upon by the Counsel for the Respondents No. 2 & 3 will not be applicable to the facts of the case.

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For the foregoing discussion, I am of the considered view that the finding recorded by the learned Claims Tribunal that the appellant/insurance company failed to prove that there was breach of conditions of insurance policy is not sustainable. Accordingly, it is setaside and it is held that as the driver of the offending vehicle was not possessing the valid and effective driving license to drive the class of

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vehicle which he was driving on the date of accident and therefore, there was breach of conditions of insurance policy.

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The insurance policy (Ex. D/2) also bears the driver’s clause and it provides that any person including the insured provided that, person driving holds an effective driving license at the time of accident. Absence of valid and effective license will be breach of policy conditions. As the Non-Applicant No. 1 was not possessing valid license to drive the J.C.B., the Insurance Company is exonerated from its liability to indemnify the insured. The liability to satisfy the award shall be of Non-Applicant No. 2 owner of the offending vehicle.

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Now, I will consider the appeal filed by the appellant/claimant in MAC No. 808/2020 seeking enhancement of the amount of compensation.

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Learned counsel for the appellant/claimants submits that the claimant on the date of accident was 17 years of age, but the learned Claims Tribunal had not awarded compensation towards the loss of earning during period of treatment. He submits that the claimant took treatment for about more than 01 month as inpatient. However, the Tribunal has awarded only Rs. 5,000/- towards the attendant. Claimant suffered grievous head injury affecting her behavior sequel, however, no amount of compensation is awarded towards the permanent disability.

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Learned counsel for the respective respondents submits that that the learned Claims Tribunal has awarded the entire medical bills which are placed before Tribunal and proved. Further, Claims Tribunal has awarded conveyance expenses of Rs. 10,000/- and Rs. 1,00,000/towards the pains and sufferings and Rs. 25,000/- towards the special diet. The amount of compensation awarded is just and proper in the facts of the case and does not call for any interference.

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I have heard learned counsel for the parties and perused the medical documents which is placed on record.

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The discharge summary dated 17.01.2019 which is placed on record as Ex. P/224 would show that the claimant was again admitted in hospital on 05.01.2019 and was discharged on 17.01.2019. The final diagnosis is mentioned as “head injury with behavioral sequel”. From the aforementioned discharge summary, it is evident that the claimant is under continuous treatment from the date of accident i.e. 11.05.2016. Even after more than 2 ½ years, she was suffering with behavioral sequel problem. The claimant is a girl of tender age and it will also effect her marriage prospects. The Claims Tribunal has not awarded any amount towards the grievous injury and has also not considered the ailment of the deceased with which she is suffering after the motor accidental injuries. Considering the aforementioned facts of the case, I find it appropriate to award Rs. 50,000/- to the claimant towards loss of marriage prospects and the grievous injuries. Further, considering that the claimant is taking continuous treatment from the date of accident i.e. 11.05.2016 and as is reflecting from the discharge summary dated 17.01.2019, I find it appropriate to award Rs. 30,000/- instead of Rs. 5,000/- towards attendant. She will further be entitled for Rs. 25,000/- for future treatment. The amount awarded on other heads are affirmed and does not call for any interference. Further, the appellant will also be entitled for Rs. 1,58,166/- towards the medical expenses as awarded by the learned Claims Tribunal. For the foregoing reason, this Court proposes to recalculate the amount of compensation payable to the appellants.

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29.Now, the appellant/claimant will be entitled for the total amount of compensation which is as under:-

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Rs. 3,98,166/- [50,000 (grievous injury and marriage prospects) + 1,58,166 (medical expenses) + 1,00,000 (pains and sufferings) + 30,000 (attendant) + 25,000 (special diet) + 10,000 (conveyance) + 25,000 (future treatment)]

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This enhanced amount of compensation shall carry interest @ 7.5% from the date of filing of claim application till its realization. Rest of the conditions mentioned in the impugned award shall remain intact.

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Any amount already paid to Claimants/Appellant as compensation shall be adjusted from the total amount of compensation as calculated above.

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At this stage, learned counsel for the claimant/Respondent No. 1 submits that as the Insurance Company has been exonerated on the ground that at the time of accident, driver of the offending vehicle i.e. J.C.B. was not possessing valid and effective driving license, direction be issued to the insurance company to first pay the amount of compensation and thereafter, to recover the same from the owner of the offending vehicle.

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The submission made by the counsel for the Respondent No. 1/claimant appears to be just and proper in the facts of the case. Considering the facts of the case and the decision of the Hon’ble Supreme Court in the case of Shamanna & Anr. Vs. Divisional Manager, Oriental Insurance Company Ltd. reported in (2018) 9 SCC 650 , Amrit Pal Singh and Anr. Vs. Tata AIG General Insurance Company Ltd. & Ors. reported in (2018) 7 SCC 558 ,

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prayer made by the counsel for the respondent/claimant is allowed and it is directed to the Insurance Company to first pay the entire amount of compensation and thereafter, to recover the same from the Respondent No. 2/owner of the offending vehicle. This Court further directs that for recovery of the amount, insurer will not be required to file separate suit, but can recover the compensation so paid, as per directives given by Hon’ble Supreme Court in case of Oriental Insurance Company Ltd. Vs. Nanjappan & Ors. reported in (2004) 13 SCC 224.

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In the result, both the appeals are allowed in part and the impugned award is modified to the extent as mentioned above.

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Certified copy as per rules.

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Sd/-/-- /-/--------/--/- (Parth Prateem Sahu) Judge

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Dey

Ku. Manisha Kishan v. Kamal Jangde

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Ku. Manisha Kishan v. Kamal Jangde

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